If you know someone very well might do a bad thing in the future, then why wait until they do it before punishing them?

Here's one of those moral-dilemma situations that get put to philosophy 101 students to illustrate the variety of forms of moral reasoning. You've got a group of (say) five people who have almost served their jail sentences for a crime. You know (as clearly as is possible in this uncertain universe) that if you release them at the end of their sentences, (say) four of the five will commit another quite nasty crime that will hurt an innocent person badly (and maybe even kill them). But you don't know which particular four of the five will do so.

Do you:

(1) Keep all five of them locked up after their sentences end until you are sure (or, as sure as is possible to be in this uncertain universe) which of the five will not commit a crime, on the basis that inflicting further punishment on an innocent person is OK if doing so stops four people getting hurt; or,

(2) Let all five of them go free when their sentences end (or, at least, "go free" in the sense of not keeping them locked up, even though they may be subject to some restrictions on how they can live outside jail) on the basis that it is wrong to further punish an innocent person for something they have not done, and will not do.

The criminal justice system generally works on the basis of answer (2). So, we say it is better that ninety-nine guilty people walk free than one innocent person get convicted; and when that commitment fails (Arthur Alan Thomas, David Doherty, Peter Ellis ... who I'll come back to), we regard that fact as a travesty to be made good. We require proof beyond reasonable doubt before deciding someone is deserving of criminal punishment - its not enough to put someone in jail that we're pretty certain someone has committed a crime. We do not (usually) allow evidence of previous convictions to be brought before the court, on the basis that a person should be judged and found guilty only on the evidence of what they are accused of doing, not what they have done in the past (and thus may be likely to do in the future).

But National's recent policy announcement on "Law and Order" appears to give the quite different answer (1) to the particular conundrum I opened with. The relevant section is this:

“Public safety is being jeopardised by a small number of serious sexual and violent offenders who are released at the end of their sentences and who present a very real, current danger to the community,” Ms Collins says.

“National will introduce civil detention orders, which will allow an application to be made to the High Court for such offenders to be held in custody until the Parole Board is convinced they are safe for release.”

Ms Collins said the new orders were expected to apply to between five and 12 offenders over a 10-year period.

“These will be offenders who have been clinically assessed as being at imminent risk of serious sexual orviolent re-offending – people too dangerous to be set free in our communities.”

This proposal has met with the predictable responses from the usual suspects. The Sensible Sentencing Trust thinks it is ... sensible. Defence lawyer Greg King thinks it is a troubling kneejerk reaction to a single case - that of the "Beast of Blenheim's" impending release.

But what is it that National really is proposing? Details are somewhat sketchy, as demonstrated above, but here's what I think is intended.

There is already (and has been for some time) a sentencing option available to judges where an offender has commited a serious violent or sexual crime and is considered to pose a very high risk of future offending. This is called "preventive detention", and it mixes a punative element with a public safety element. So, if imposed, the offender serves a minimum sentence of at least 5 years ... and then stays in jail until the offender can convince the Parole Board that he (and in all-but-one case the offender has been a "he") no longer poses a danger to the community. This means that, in theory, a prisoner who fails to demonstrate they have been rehabilitated can stay in jail until he dies.

The problem is that the criteria for imposing a sentence of preventive detention has shifted over time. (I am indebted here to this paper by the MoJ's Chris Hurd.) So there are some offenders who committed their offences at a time when preventive detention was not an available sentencing option (because they didn't fit the criteria at that time), but who would have been eligible for (and actually sentenced to) preventive detention had today's criteria been applied.

That's the case with the "Beast of Bleheim". His offending occured at a time when the courts were not able to sentence an offender to preventive detention unless they previously had been convicted of a serious sexual or violent offence. He hadn't been. So even though he displayed a pattern of serious sexual offending over time and received a (for then) extraordinarily long prison sentence, he could not be preventatively detained under the law in place at the time of his offending. Today, he could (and most probably would) be.

So what I'm guessing National is proposing is to retrospectively apply today's criteria for preventive detention to prisoners sentenced for offending that took place when preventive detention was not an option for them. If the Parole Board thinks a prisoner currently serving a finite sentence for serious sexual or violent offending poses a real risk of committing further such crimes on his release, the Crown can ask the High Court to (in effect) say that prisoner's sentence should be changed to preventive detention using today's tests.

I think this must be National's proposal because it's the neatest and (as I'll get on to below) least objectionable approach. For another thing, if National is proposing anything different, then you'd end up with a bizarre situation where one set of criteria would apply to the decision to sentence someone to preventive detention at trial and another, different, and assumedly easier-to-meet set of criteria would apply to preventatively detaining them upon their release. Which wouldn't make much sense at all.

Assuming that I am right about this (and as I say, it's only a somewhat educated guess as National hasn't filled in the details of this proposal), then the measure will only apply to prisoners sentenced for offences committed before 2002, when the current rules on preventive detention were introduced. If a judge at trial has decided that a sentence of preventive detention should not be imposed on an offender under the present rules (i.e. for offending committed after 2002), I can't see how another judge would effectively revisit that sentencing decision and decide that actually the trial judge got it wrong and preventive detention should have been imposed. That's what the appeal process is for, and I don't think the courts would accept the short-circuiting of that process by allowing a "do-over" at the end of a prisoner's time in jail. This means that the prisoners affected will be those who are coming off sentences imposed for offences committed prior to 2002 - which I suspect is why only five-to-twelve people are mentioned as being touched by this proposal.

But what of the legitimacy of even this limited proposal? Well, it will almost certainly breach the New Zealand Bill of Rights Act 1990, s.26 right to be free from retroactive penalties and double jeopardy. It's almost certainly a breach of the rule of law, by subjecting someone to a legal rule that is different from that which applied when they committed their act governed by that rule. And it goes without saying that these are bad things for a government to do.

Of course, National hasn't really cared about this sort of thing in the past, nor does the public really seem to mind especially if the rights of prisoners get messed about with. And it can be argued that this isn't really about imposing further punishment on a person. The prisoner's sentence is their punishment - which they've served and so could walk free but for the fear of their future actions. Therefore, keeping a prisoner in jail for longer is purely a public safety measure which exists irrespective of the particular rules in place at the time. To personalise the issue, the fact the law on preventive detention when the "Beast of Blenheim" was sentenced did not cover him does not lessen the need for protecting society from him. And so if we have to achieve that protection by going back and applying today's "proper" rules on preventive detention to his past actions, then all that's being done is treating him as he really ought to have been treated had those "proper" rules been in place. After all, the need for public safety doesn't change over time, even if the rules designed to achieve that have.

Well, when it's the "Beast of Blenheim" we're discussing, it's hard to argue with that pragmatic conclusion. But here's another example to think about. Peter Ellis was convicted in 1993 for multiple sex offences against children over an extended period of time. He consistently denied the allegations, thereby indicating a reluctance to confront the causes of his offending. Whilst in prison, he refused to engage in any rehabilitation measures. He even refused to apply for parole, on the basis that this would require an admission of his guilt ... so he only got released when he'd served 2/3rds of his sentence and the Parole Board had no choice but to let him go.

So, given Peter Ellis' consistent refusal to take any steps to address his "offences" whilst in prison, isn't he just the sort of prisoner who the Parole Board would see as posing a real risk of reoffending and thus should be kept in jail until he admits his guilt and comes to term with his "wrongs"? How happy are you at that thought?

Comments (10)

A case can also be made that some probable offenders can be identified before they actually offend. Society could be made safer by locking them up until they are no longer a threat. Would we accept that in NZ?

This seems to be another drip, drip case of a law change that turns legal traditions on their heads in the interests of punishment. At what point does the water around this frog [the legal system] reach boiling point and we find we've tilted entirely in favour of our punitive desires?

Towards the end she agrees with the suggestion this is mostly cover until PD kicks in fully; though I can see where it could be used irrespective.

As an aside, Stuart Wilson was subject to a bit of sentence-rewriting, under s107 - that's how he's ended up serving the whole time rather than being released at what was - at the time of sentencing - his 'final release date'.

But, yeah, if we're going to suddenly have entirely pre-emptive detention, it is really, really something that does need to be talked about in broad terms.

Alternatively, it could be something like Victoria, where the Corrections Commissioner can apply to the court to continue to detain a prisoner after their sentence because they are an unacceptable risk of committing an offence if released. In this sense it seems more like detention under NZ's mental health act.

In Queensland and New South Wales such orders (or similar) are called continuing detention orders and the UN Human Rights Committee has decided in two cases (Fardon v Australia and Tillman v Australia) that they are in breach of the right to be free from arbitrary detention under the ICCPR.